My article, Religious Hiring Beyond the Ministerial Exception, argues that religious groups have six potential legal defenses when they fire a non-minister (like a secretary or janitor) for violating the group's beliefs about sex or marriage. Some defenses are statutory, like Title VII's religious exemption. Others are constitutional, like the church-autonomy doctrine or the freedom of expressive association.
With several defenses to choose from, how should courts resolve these cases? In today's post, I'll first explain and critique how courts are currently addressing these cases—namely, by expanding the ministerial exception to apply to all of them. I'll then argue that some cases should be resolved differently—by not shying away from defenses like Title VII's religious exemption and church autonomy, which are specifically tailored to a religious group's interest in maintaining religious qualifications for employees.
What Courts Are Doing
